Dellita Johnson v. City of Detroit and City of Detroit Housing Commission

446 F.3d 614, 2006 U.S. App. LEXIS 10941, 2006 WL 1153762
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 3, 2006
Docket04-1817
StatusPublished
Cited by58 cases

This text of 446 F.3d 614 (Dellita Johnson v. City of Detroit and City of Detroit Housing Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dellita Johnson v. City of Detroit and City of Detroit Housing Commission, 446 F.3d 614, 2006 U.S. App. LEXIS 10941, 2006 WL 1153762 (6th Cir. 2006).

Opinions

GRIFFIN, J., delivered the opinion of the court, in which GIBBONS, J., joined.

MARTIN, J. (pp. 629-32), delivered a separate opinion concurring in part, dissenting in part, and concurring in the judgment.

OPINION

GRIFFIN, Circuit Judge.

Plaintiff Dellita Johnson, on behalf of her minor child, Jerome Johnson, Jr., appeals an order of the district court dismissing the claims she asserted against defendants City of Detroit (“City”) and the City of Detroit Housing Commission (“DHC”), for the deprivation of federal rights ostensibly created by provisions of the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. §§ 4821-46 (“LBPPPA”), the United States Housing Act of 1937, as amended, 42 U.S.C. §§ 1437-1437bbb (“USHA”), [617]*617and administrative regulations promulgated pursuant to those statutes. We affirm and hold that the LBPPPA, the USHA, and their administrative regulations do not create individual federal rights enforceable under 42 U.S.C. § 1983.

I.

In August 2003, plaintiff filed the present action against the City and the DHC, seeking damages for lead-based paint poisoning allegedly suffered by her minor son, Jerome Johnson, Jr., while he was a tenant at the Jeffries Homes public housing project in Detroit, Michigan. Plaintiff and her son resided at the Jeffries Homes from 1988 until 1992.1 During this relevant time period, the City, a “public housing agency” (“PHA”),2 and the DHC, a department of the City, owned and operated the public housing project and received federal funding pursuant to Section 8 of the USHA, 42 U.S.C. § 1437f.

In her seven-count complaint, plaintiff alleges that, while a resident of the Jef-fries Homes project, she complained to defendants’ agents and employees about peeling, chipping, and flaking lead-based paint in and around her living unit, but that defendants failed to rectify the problem. Count I of the complaint alleges a cause of action for damages under 42 U.S.C. § 1983 for the deprivation of federal rights purportedly conferred by provisions of the USHA, the LBPPPA, and administrative regulations created under those statutes. Count II alleges “other violations of federal law,” but it, too, is based on federal rights under the same statutes and regulations as described in Count I. Count III alleges a violation of an implied private right of action under the LBPPPA, and Count IV asserts a claim for breach of the annual contributions contract (“ACC”) executed between the United States Department of Housing & Urban Development (“HUD”) and the DHC, as a third-party beneficiary. Count V alleges breach of warranty of habitability in violation of Michigan Compiled Laws § 554.139. Counts VI and VII assert claims of common law negligence and nuisance per se, respectively. Defendants filed a motion pursuant to Fed. R. Crv.P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted. Following oral argument, the district court, on May 24, 2004, issued a comprehensive opinion and order, granting in part defendants’ motion with regard to Counts I, II, and III of the complaint. See Johnson v. City of Detroit, 319 F.Supp.2d 756 (E.D.Mich.2004). Specifically, the district court concluded that the relevant provisions of the USHA, the LBPPPA, and accompanying regulations did not confer personal federal rights on plaintiff, as a tenant of Section 8 housing, that could be enforced pursuant to § 1983. Id. at 763-79. In addition, the court held that the LBPPPA does not allow for an implied private right of action. Id. at 779 n. 11. The district court dismissed all remaining supplemental state law claims (Counts IV-VII) under 28 U.S.C. § 1367 without prejudice. Id. at 781.

On June 8, 2004, plaintiff filed a motion to alter or amend judgment, and to amend the complaint to allege violations of plaintiffs Fifth and Fourteenth Amendment rights to substantive due process. The district court denied the motion by order entered on June 21, 2004.

[618]*618On June 24, 2004, plaintiff filed a timely notice of appeal from both the judgment of May 24, 2004, granting in part defendants’ motion to dismiss, and the order of June 21, 2004, denying plaintiffs motion to alter or amend the judgment and to amend the complaint.3

II.

We review a district court’s dismissal of a complaint under Rule 12(b)(6) de novo. Arrow v. Fed. Reserve Bank of St. Louis, 358 F.3d 392, 393 (6th Cir.2004). In order to survive a 12(b)(6) motion, the plaintiffs complaint must allege facts which; if proved, would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In reviewing a motion to dismiss for failure to state a claim, we “construe the complaint in a light most favorable to the plaintiff, accept all of the factual allegations as true and determine whether the plaintiff can prove no set of facts in support of his claims that would entitle him to relief.” Arrow, 358 F.3d at 393. “Although this is a liberal pleading standard, it requires more than the bare assertion of legal conclusions. Rather, the complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Nat’l Hockey League Players Ass’n v. Plymouth Whalers Hockey Club, 419 F.3d 462, 468 (6th Cir.2005).

III.

Plaintiffs claims that certain provisions of the LBPPPA and the USHA create individual federal rights enforceable under 42 U.S.C. § 1983 must be considered against the backdrop of recent developments in this area of jurisprudence.

Title 42 U.S.C. § 1983 creates a remedy for those denied “rights, privileges, or immunities secured by the Constitution and laws.” Id. (emphasis added). Federal statutes are clearly “laws” within the meaning of § 1983. Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 508, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990); Wright v. Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 423-24, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987); Maine v. Thiboutot, 448 U.S. 1, 4-5, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Section 1983 does not alone create substantive rights; rather, “ § 1983 merely provides a mechanism for enforcing individual rights ‘secured’ elsewhere, i.e., rights independently ‘secured by the Constitution and laws’ of the United States.”

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Bluebook (online)
446 F.3d 614, 2006 U.S. App. LEXIS 10941, 2006 WL 1153762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dellita-johnson-v-city-of-detroit-and-city-of-detroit-housing-commission-ca6-2006.